Breadcrumb navigation:

Letter from the Dean

fall 2003

Dear Alumni and Friends of Boston College Law School:

There are several lessons for the legal community, and for Boston College Law
School, in the brouhaha provoked by Roy Moore over the Ten Commandments. Moore
was elected Chief Justice of the Alabama Supreme Court in November of 2000.
The following year he installed a granite monument about the size of a washing
machine in the rotunda of the Alabama State Judicial Building. Inscribed on
it are the Ten Commandments. Moore said he did it to fulfill a campaign pledge
“to restore the moral foundation of law.”

The rest of the story is predictable. Three lawyers who practice in the building
sued to remove the monument, claiming that it offended them and made them feel
like “outsiders.” A federal district court in Alabama concluded
that Moore had violated the Establishment Clause, and the Eleventh Circuit agreed.
Then things got a little sticky. Moore refused to obey the district court’s
order directing him to remove the monument. His eight colleagues on the Supreme
Court took the matter away from him, and the removal went ahead as ordered.
A state Judicial Inquiry Commission suspended Moore, and the Alabama Court of
the Judiciary is currently considering a complaint of judicial misconduct against
him. Moore himself has asked the United States Supreme Court to review the Eleventh
Circuit’s decision.

I think that Justice Moore did the wrong thing in putting up his monument, and
compounded the wrong by refusing to take it down. But I think so for reasons
different from the ones I have seen in the papers. The judge’s actions
show too little respect for religion, not too much.

Consider first the erection of the monument. The standard objection (we hear
it in crèche cases and school prayer cases and debates about the pledge
of allegiance) is that this was unconstitutional because religion has no place
in law or politics. The plaintiffs complained that it made them feel like “outsiders.”
You get the impression that the Establishment Clause was designed to protect
people who are offended by religious practice against cultural oppression by
the moral majority. In order to guarantee equal treatment of all citizens, this
account holds, we have a regime of secular liberalism where religion is at best
a taboo subject, at worst a bad influence.

But the standard objection is a mistake. No group had a more important role
in adopting the Establishment Clause than Baptists, and they wanted it for their
own sake, not for their agnostic friends. “[I]f civil Rulers go so far
out of their Sphere as to take the Care and Management of religious affairs
upon them,” said a Baptist Declaration in 1776, “Yea . . . Farewel
to ‘the free exercise of Religion.’” The worst thing about
an Establishment of Religion is that it authorizes some government official
to tell me how to pray.

There was a whiff of this in Justice Moore’s two-and-a-half-ton display.
His Ten Commandments were taken from Exodus 20 in the King James bible. Roman
Catholics favor Deuteronomy 5 in the Jerusalem bible. The numbering and content
of the two versions differ slightly. This might seem petty, but Protestants
and Catholics fought over the differences for a century in public schools. Catholics
did not object to using the Protestant version because they had a low opinion
of religion. Rather, what they wanted was to follow the translations and formulae
approved by their own religious leaders. Abington School District v. Schempp
put an end to school bible reading in 1963.

Justice Moore’s monument stirs up this dispute again. And now it’s
not just Catholics who might object. America is a more diverse place than it
was forty years ago. Today we can imagine devout Muslims who might prefer to
see the Five Pillars of Islam rather than the Ten Commandments or Buddhists
who would chose instructions from their own faith.

Consider now Justice Moore’s refusal to take his monument down. It is
a serious thing for a judge to refuse to obey a federal court order. The rule
of law depends upon a social commitment to respect the outcome of judicial proceedings
even if we disagree with the result. Justice Moore’s behavior violates
that commitment. It is also a very high-profile case of bad example. One such
act of disrespect can undermine a year of effort at Boston College Law School
to teach our students the importance of obeying the law. A judge cannot behave
this way and remain a judge.

Let me now say three things that are beside the point in this controversy, but
closely related to it. The first concerns Moore’s campaign pledge “to
restore the moral foundation of law.” It would be a First Amendment mistake,
and a bad political scheme, to forbid politicians to speak to people at the
level of their truest convictions.

Alabama’s governor is a man named Bob Riley. While Justice Moore was campaigning
for the Ten Commandments, Governor Riley was campaigning to raise property taxes
to collect more revenue from logging companies. The existing tax structure,
relying as it does on income and sales taxes, falls hard on the poor. Riley’s
argument against this structure (it was unsuccessful) had a familiar sound:
“According to our Christian ethics,” he said, “we’re
supposed to love God, love each other, and help take care of the poor.”
Was he guilty of the same offense as Roy Moore? I think not. There is a difference
between building a religious shrine and proposing religious reasons for doing
a religiously neutral act (taxing the rich to help the poor). Governor Riley’s
speech appealed to Christians and not others, but he probably had other arguments
for the rest of the electorate.

The second point is about the federal court order to take the monument down.
I think this order was right on the merits. Justice Moore disagreed. If he felt
he could not comply with a court order, he should have resigned his post rather
than disobey. Let us suppose that his reasons were religious rather than legal.
He might have thought, for example, that God’s law should always trump
human law, and that no matter what the First Amendment might say, it would be
wrong (sinful) to remove the Ten Commandments. I can sympathize with this. If
I were a federal judge I would have religious scruples about sentencing a defendant
to death even though federal law might require me to do so. I do not think that
when you take public office you should subordinate your religious obligations
to your civic ones. The thing is, when you find yourself in a jam because your
duties conflict, it is wrong to solve the problem by subverting the legal order.

The third point is about Boston College Law School. We live in a pluralistic
society. In a way that’s what the Ten Commandments flap is about. There
are many who wish that America were a Christian, or more ecumenically, a Judeo-Christian
nation, but we are not. Americans come in all shades of belief, and the Establishment
Clause states that the government should not privilege one shade over another.
This does not mean—as the case of Governor Riley illustrates—that
we must purge all discussion of religious principles from the public sphere.
It does mean that we must respect our differences from one another.

The respect for differences extends to institutions as well as individuals.
It is one of the glories of pluralism that we cherish religiously affiliated
law schools like Boston College and Georgetown, Cardozo and Brigham Young, alongside
secular schools like Virginia, Kentucky, and Duke. At Boston College we have
a chapel where we celebrate daily mass. At a state school like Virginia that
would be unconstitutional. At Boston College we are free to raise questions,
arguments, and points of view that would be uninteresting, impolite, or out
of order at Stanford.

These differences are part of our appeal; we are not like every other elite
law school. But to come back to my original point, neither is the state of Alabama
like Boston College. The constitutional arrangement that Roy Moore violated
forbids state officials to use their offices to do some of the things we do
here. Pluralism has two sides: public limits and private freedom. They are related
to one another. Both arise out of a respect for our differences. Ignoring one
side of that balance poses a threat to the other. If we do not respect differences
in public life, we probably do not understand the importance of protecting them
in private institutions.